Thursday, July 7, 2011

How to resolve the South China Sea issue

By Jin Yongming (China Daily) Updated: 2011-07-07

China has been making continuous efforts to defuse the tension over the South China Sea issue, even though some countries have taken unilateral actions to meet their interests.

The South China Sea issue is complicated with legal disputes, which should be solved within the framework of international laws, including the Charter of United Nations, the 1982 UN Convention on the Law of the Sea (UNCLOS) and the 2002 Declaration on the Conduct of Parties in the South China Sea.

The legal disputes can be divided into two parts: China's territorial disputes with some Southeast Asian countries, and its disagreements with the US on military action in the region. The US claims to defend free navigation in the South China Sea, but actually it is defending its own military interests.

The disputes between countries can be resolved peacefully either politically or diplomatically, or through legal procedures.

The key to solving the territorial disputes over the islands, islets and reefs in the South China Sea through political means lies in related countries' (such as the Philippines and Vietnam) willingness to "shelve the disputes" and consent for "joint development". Since some countries are already exploiting many of the islands, it is very difficult to define the sea areas which need to be jointly developed and help resolve the disputes politically.

It is difficult to resolve them by using international laws, too, because neither China nor Vietnam has accepted the jurisdiction of the UN's International Court of Justice (ICJ) without reservations. The Philippines has accepted the ICJ's jurisdiction but has reservations on its jurisdiction over sea and land territorial disputes. Thus the possibility of solving the problem through the ICJ can also be ruled out.

Besides, according to Article 298 of UNCLOS, China made a statutory declaration on Aug 25, 2006 to the UN secretary-general that it doesn't accept any international court or arbitration in disputes over sea delimitation, territorial disputes and military activities. So the International Tribunal for the Law of the Sea cannot intervene in the South China Sea disputes between China and some Southeast Asian countries.

Moreover, without an agreement among the relevant countries, no arbitration organization can deal with the disputes. Therefore, the disputes cannot be resolved politically any time soon.

But there are some good examples of success. On June 30, 2004, the China-Vietnam Agreement on the Demarcation of the Beibu Gulf and the Beibu Gulf Fishery Cooperation Agreement came into force. On March 14, 2005, China, Vietnam and the Philippines signed the Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea. And recently, China and Vietnam have intensified negotiations on new agreements to resolve their other disputes.

Considering the difficulties a state faces in compromising its territorial claims, political negotiation will be a long-drawn process. Before reaching a solution, a wise choice for China and other countries locked in the disputes would be to discuss and sign some cooperative agreements on "low-level" issues such as environmental protection, marine transportation, and anti-piracy and anti-smuggling actions to prevent the disputes from worsening. Such cooperation will be not only in line with the Declaration on the Conduct of Parties in the South China Sea, but also in accordance with the Article 123 of UNCLOS on "cooperation of States bordering enclosed or semi-enclosed seas".

Sino-US disputes, on the other hand, are more complex and can only be resolved politically. The two countries understand and interpret UNCLOS differently, including the scientific research in and peaceful use of exclusive economic zones.

Both have different interpretations of the third point of Article 58 of UNCLOS, which says: "In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part."

But neither has accepted the jurisdiction of the ICJ. So they cannot use its explanation or rulings. And since the US has not joined the convention and China has ruled out the possibility of international arbitration in the issue, a legal solution to the problem is not possible.

Several mechanisms exist between China and US, such as dialogues on sea security and Asia-Pacific affairs, through which they resolve their disputes politically. The two countries need to deepen their understanding and strengthen mutual trust, especially on the interpretation of UNCLOS to maintain peace and stability in the region.

But because neither international nor regional mechanisms on the sea are likely to be changed in the near future, it is essential for China to give the final shape to its domestic laws and regulations.

First, China should clarify the legal status of its "nine-dash" U-shaped line in the South China Sea.

Second, China should publicize its mare clausum (baseline of territorial sea) in the South China Sea, especially near the Nansha Islands, apart from setting up a special committee on sea affairs and making sea laws and regulations more coordinated.

Third, cooperation between the Chinese mainland and Taiwan should be enhanced. Given the progress in cross-Straits relations, the two sides can start cooperation on easier issues such as environmental protection, scientific research, fisheries and disaster prevention to set up a cross-Straits framework on sea issues, because both have the responsibility of defending the interests of the nation.

The author is a law scholar with the Shanghai Academy of Social Sciences and the Academy of Ocean of China.